Some thoughts & observations
The Grutter case decided in 2003 is best (though infamously) known for holding that the attainment of a racially diverse student body is “a compelling government interest.” Otherwise, the admissions preferences under challenge in Grutter could not have been justified. These issues are back in the federal courts, and may well rise to the Supreme Court by 2020-21.
There is yet more to observe about Grutter—in particular a sentence early in the Court’s opinion in the case by Justice O’Connor: “As part of its goal of ‘assembling a class that is both exceptionally academically qualified and broadly diverse,’ the law school seeks to enroll a critical mass of [underrepresented] minority students.” This notion of a critical mass is intended to secure something called the “educational benefits” of diversity, a vague formulation that has not become more specific with time.
No one defines critical mass as an absolute number, toward which it can be projected when a school will “attain” or “obtain” or “reach” or “achieve”—to use verbs typically deployed here—critical mass. Instead, its advocates define it, in the words of Justice Alito, as “a deliberately malleable ‘we’ll know it when we see it’ critical mass, defined as an adequate representation of minority students,” one sufficient for producing educational benefits that justify racial discrimination. What is deliberately malleable is not (yet) a quota, which the case law says is illegal.
The Grutter case was a 5-to-4 decision, and extruded from Justice Scalia a dissent inflected with insight and humor: Take the following and read, as Augustine once said in a very different setting:
The law school’s mystical critical mass justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.
The allegedly ‘compelling state interest’ at issue here is not the incremental ‘educational benefit that emanates from the fabled ‘critical mass’ of minority students, but rather Michigan’s interest in maintaining a ‘prestige’ law school whose normal admissions standards disproportionately excluded blacks and other minorities. If that it is a compelling state interest, everything is.
The ‘educational benefit’ that the [school] seeks to achieve by racial discrimination consists, according to the Court, of ‘cross-racial understanding’ and ‘better preparation of students for an increasingly diverse workforce and society . . . This is not, of course, an “educational benefit” on which students will be graded on their law school transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding.) . . .
Scalia observed that Grutter (together with the companion case of Gratz) seems “perversely designed to prolong the controversy and the litigation. . . . Other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved critical mass. Finally litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority critical mass.”
Might such short-changed minority groups include, indeed are mostly, Asian Americans? That’s the Harvard College case, and it could prove the counter to Grutter necessary for the recovery of colorblind law in admissions.
